Allege violation of federal Constitution Elections Clause for new map that is more friendly to Democrats than Democrats proposed.

A new theater has opened up in the great Pennsylvania Redistricting Battle of 2018, with Republicans filing a federal lawsuit to halt court-ordered redistricting that could cost the GOP four seats in the House this November.

On January 22, the Pennsylvania Supreme Court declared that the state’s Congressional map, which had been in place since 2011, violated the state constitution. The Republican legislature and Democratic governor were directed to agree on a new map. They failed to do so, and on February 19, the court adopted a new Congressional map devised by Stanford professor Nathaniel Persily.

[PA Congressional District Map after 2011 Redistricting]

.

[Revised PA Congressional District Map Ordered by PA Supreme Court]

Elections analysts Nate Cohn and Dave Wasserman quickly observed that the new map doesn’t just draw compact and community-preserving districts, as the court directed: it also makes subtle land swaps that eliminate the GOP’s natural geographic advantages in Pennsylvania. The court’s map is certainly “fairer” than the old map, which gave Republicans a 13–5 advantage in a competitive swing state.

Indeed, had the court simply gone with a “partisan-blind” remedial map, it would be tough to raise a principled objection. But the court overreached by going further and neutralizing a natural Republican edge that no one—including the justices themselves— ever claimed was illegal.

For more background information, see my February 19 post on the court-imposed districts, and my January 23 post on the original story.

Last night the state Speaker of the House and president pro tempore of the Senate—both Republicans—applied for a stay from the U.S. Supreme Court.

Justice Alito, who handles appeals from the Third Circuit, already rebuffed a similar request on February 5.

But a crucial distinction between the rejected request and this new one, law professor Josh Blackman notes, is that the Elections Clause violation is no longer speculative.

4/ I don't put much stock in J. Alito's denial of the stay before the PA Supreme Court drew the map. At that point, there was not yet a plausible violation of the Elections Clause. Now that the map has been drawn, the facts are different.

Concurrently, Pennsylvania Republicans today filed suit in the United States District Court for the Middle District of Pennsylvania, naming as defendants Robert Torres, Pennsylvania’s Secretary of State, and Jonathan Marks, a state elections officer—both are responsible for implementing the court’s map before the 2018 primaries and midterms.

In the filing, embedded below, the Republicans argue that the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause (1) by divining “‘mandatory’ redistricting criteria found nowhere within the Pennsylvania Constitution or legislative enactments” and (2) by “failing to afford the General Assembly the requisite ‘adequate opportunity’ to craft a substitute Congressional redistricting plan.”

The Elections Clause directs that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Republicans allege that, by giving the General Assembly only three weeks to draw remedial districts and withholding a full opinion for most of that duration, the court acted in bad faith and was “intent on usurping the General Assembly’s delegated authority and crafting a plan of its own.”

Interestingly, the Plaintiffs in this lawsuit include incumbent Republican members of the House, who, without federal court intervention, will have wasted time and money campaigning to represent voters who have now been penciled out of their districts. One such plaintiff is Ryan Costello:

Under the Congressional districting plan recently crafted by the Pennsylvania Supreme Court, approximately 50% of the 6th district encompasses new constituents and divides communities that he has served for years. For example, in the new map, almost the entirety of Berks County will reside in a different district and the Township of Exeter will now be split. This has destroyed any incumbency advantage that Congressman Costello may have once held and the Congressman’s District now contains a majority of voters from the Democratic Party, where it once was a majority Republican district. He has been actively campaigning for reelection, having participated in numerous forums and town-hall meetings, and raising over $1.6 million for his candidacy. Congressman Costello spent approximately $450,000 for his re-election in 2017, of which over $220,000 was spent in efforts to engage with voters he will no longer represent.

To top off the complaint, Republicans cite the tweets by Cohn and Wasserman concluding that the court-ordered map intentionally compensates Democrats for the clustering of their voters in Philadelphia and Pittsburgh.

Since some have asked, here are some of the Democratic-friendly choices on the new PA map, along with the more Republican alternatives. All are defensible, but it’s hard to find anything that broke the GOP’s away. (and these are mainly micro-level choices, not big picture) pic.twitter.com/7PZe3WooVE

This lawsuit and the stay application both seek the same substantive relief. But there is a noteworthy procedural distinction. In applying for a stay with the Supreme Court, Republicans are asking to suspend the Pennsylvania court’s decision pending a petition for a writ of certiorari—that is, prevent the ruling from taking effect until the justices decide whether or not they will hear the case. In this lawsuit, Republicans are asking a federal district court to enter an injunction prohibiting Pennsylvania’s Secretary of State, Robert Torres, from implementing the court/Persily’s map.

There is one glaring vulnerability. The Rooker-Feldman doctrine forbids lower federal courts from hearing appeals of state court decisions. If a litigant is unhappy with a state court’s ruling, he or she generally must appeal the decision to a higher court in the state or, assuming those appeals have been exhausted, the U.S. Supreme Court.

Torres and Marks will no doubt respond that, while this lawsuit is couched as a plea for injunctive relief, it is, in reality, just an appeal of the Pennsylvania Supreme Court’s decision, and must therefore be dismissed under Rooker-Feldman.

Comments

Torres and Marks will no doubt respond that, while this lawsuit is couched as a plea for injunctive relief, it is, in reality, just an appeal of the Pennsylvania Supreme Court’s decision, and must therefore be dismissed under Rooker-Feldman.

Indeed they may argue that, which is why I wonder whether it may have been a mistake to include substantive criticisms of the decision; perhaps they’d do better to argue “It makes no difference whether the state court’s decision on state law was right or wrong, and we’re not arguing that, but even supposing the court was 100% right it still has no authority to draw a new map, and the defendants (Torres and Marks) should be enjoined from implementing that map, since it has no more force of law than a map drawn by a kindergarten class.

My take, from reading the complaint, is that the SCOP 1) does not have jurisdiction, under the State of Federal Constitution to draw a districting map and 2) it does not have any authority to invent “standards” for such districting which are not found in either the State constitution or state law.

Bad science is when human motive forces desired outcomes on results, and the scientist, the students, and indeed who long chains of scientists waltz happily over a lemming cliff into oblivion. for all their works and efforts are wasted for failure to allow reality to intrude. Yet a scientist is VERY LUCKY to have reality, to have a real universe and physical entities and forces to be actually measured, observed recorded. Thus at some point even the worst science, maintained for generations gets re-grounded by reality. Nature serves the purpose of Nature’s God to humble long and massive chains, of huge and wealthy establishments of science.

Bad law, bad legal theory is not so lucky. What causes a reset to the reality of the laws between men and between men and our God, the God of Creation and the Providence that continually sustains the universe and all social relations in every moment? In the realm of man’s law God is not as obvious, nor is the realm of law and government so ready to prove proper law as is the ground to prove the law of gravity.

Much bad law is spoken on this issue. The commons is afrothing with acrimony. Lathered mouths everywhere.

What makes a good district? There are simple answers!

Every so often the law, the systems of law we know as government and courts, legislatures and bureaucracy, law schools and humans allowed before the bar — will get a reset. At some point it is unavoidable. Reality, like the hard concrete a penny falling from the fingers reaches under the influence of unseen but quite real forces of gravitational pull, works also in law and the systems of law and government. And such resets, if men do not suffer to pursue the clean up themselves, and do it with detachment and intellectual vigor and ethical, moral and spiritual improvement (not easy any of it), are brutal and fast. So history lets us see.

What makes a fair district of voters? There are honest answers.

What makes good law, long wandering chains of stare decisões, or long series of usurpations and injustices made under color of office and acquired offices wielding great practical power in political connections, access to law making, bending ion the ears of judges via appeals to base human desires such as memberships in hearty groups, posh clubs, wealth, access to insider business deals?

In a time of depravity there ain’t no common sense. The Pennsylvania GOP drew and outrageously hideously deformed map. Why? For power and might! For justice and equity, naught. What’s the fix? The fix in IN, as any Philadelphia Judge will tell a connected person come before him in court. Likewise the judge in GOP Bucks will tell his own cohort of good fellows: the fix is IN.

The map was BAD. The court’s map is not so bad. But it is BAD fro those who wield power by tricks and ruining for quite long times any sense of common sense, of reality of “goodness” in the law.

Geerymander’s legacy of law. “Elbridge Gerry, the governor who signed the bill creating the misshapen Massachusetts district, was a Founding Father: signer of the Declaration of Independence, reluctant framer of the Constitution, congressman, diplomat, and the fifth vice-president. Well-known in his day, Gerry was a wild-eyed eccentric and an awkward speaker, a trusted confidant of John Adams and a deep (if peculiar) thinker. He could also be a dyspeptic hothead—a trait that got the better of him when he signed the infamous redistricting bill.”
)Smithsonian Mag)

That New England genius’s troublesome one legacy was REJECTED in Pennsylvania at some point. There is clear guidance in the Pennsylvania Constitution — which is the ONLY authority by which the State Legislature operates — for how to draw districts. The court’s tricky bits of a map are not so tricky to vacate the ideal that Constitution REQUIRES. So who is right? What is the law?

And is it good law?

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